Citation Nr: 20045035 Decision Date: 07/07/20 Archive Date: 07/07/20 DOCKET NO. 15-38 838 DATE: July 7, 2020 ORDER For the appeal period prior to December 17, 2019, a 50 percent rating, but no higher, for depressive disorder is granted. Beginning December 17, 2019, a rating in excess of 50 percent for depressive disorder is denied. Entitlement to special monthly compensation (SMC) based on the need for the regular aid and attendance of another person or on being housebound is denied. FINDINGS OF FACT 1. For the rating period prior to December 17, 2019, the evidence is at least in equipoise as to whether the Veteran’s depressive disorder more nearly approximated occupational and social impairment with reduced reliability and productivity. 2. The Veteran’s depressive disorder has not more nearly approximated occupational and social impairment, with deficiencies in most areas. 3. The Veteran is not so helpless as to be in need of regular aid and attendance due to his service-connected disabilities. CONCLUSIONS OF LAW 1. For the rating period prior to December 17, 2019, the criteria for a disability rating of 50 percent rating, but no higher, for depressive disorder are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9434 (2019). 2. For the rating period beginning December 17, 2019, the criteria for a disability rating in excess of 50 percent for depressive disorder are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9434 (2019). 3. The criteria for SMC based upon the need of regular aid and attendance or by reason of being housebound are not met. 38 U.S.C. §§ 1502, 1521 (2012); 38 C.F.R. §§ 3.351, 3.352 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1973 to June 1974. This case comes before the Board of Veterans’ Appeals (Board) on appeal from the August 2012 and November 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a November 2017 hearing before the undersigned Veterans Law Judge. A complete transcript of the hearing is of record. The issues on appeal were previously remanded by the Board in August 2019. In an April 2020 rating decision, the RO assigned a 50 percent evaluation for MDD beginning December 17, 2019. Accordingly, the Board will consider whether a rating in excess of 30 percent is warranted for MDD for the appeal period prior to December 17, 2019, and in excess of 50 percent thereafter. Rating for Depressive Disorder Disability—Laws and Analysis The Veteran is currently in receipt of a 30 percent rating for depressive disorder for the appeal period prior to December 17, 2019. He has been assigned a 50 percent rating beginning December 17, 2019. The Veteran essentially maintains that higher ratings are warranted. Disability ratings are determined by comparing a Veteran’s present symptoms with criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Veteran is in receipt of a 30 percent disability rating for MDD under Diagnostic Code 9434 for the appeal period prior to December 17, 2019. A 30 percent rating is assigned when a mood disorder causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment and mild memory loss. 38 C.F.R. § 4.130 (2019). The Veteran is in receipt of a 50 percent rating for depressive disorder beginning December 17, 2019. A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped, speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech that is intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. Id. A 100 percent disability rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, or for the veteran’s own occupation or name. Id. In applying the above criteria, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181 (1998) citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so). In determining the level of impairment under 38 C.F.R. § 4.130, a rating specialist is not restricted to the symptoms provided under the diagnostic code, and should consider all symptoms which affect occupational and social impairment, including those identified in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM-IV or DSM 5). See Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence demonstrates that a claimant suffers symptoms or effects that cause an occupational or social impairment equivalent to those listed in that diagnostic code, the appropriate, equivalent rating is assigned. See Mauerhan, 16 Vet. App. 436. The evidence includes a March 2012 VA psychiatric examination. At that time, the examiner diagnosed the Veteran with a mood disorder secondary to the service-connected knee disability. The Veteran was also diagnosed with a cognitive disorder, but the examiner indicated that this was not related to service. The Veteran’s mood disorder was found to result in low energy, low motivation, irritability, anxiety, and stress. On the other hand, the Veteran’s cognitive disorder resulted in memory and concentration problems. Upon mental status examination, the Veteran’s mood was sometimes irritated, and affect was restricted. The Veteran denied suicidal ideation. Memory, attention, and concentration were within normal limits. The examiner opined that the Veteran’s mood disorder resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. VA treatment records include a March 2015 mental health note. At that time, the Veteran reported having a depressed mood frequently, but not every day. He reported sleeping well and having a good appetite. The Veteran denied suicidal and homicidal ideation. Upon mental status examination, the Veteran’s mood was dysphoric, and affect was anxious and constricted. The Board further notes that VA mental status examinations from June 2012 to March 2015 showed that the Veteran consistently had a dysphoric mood with a constricted or anxious affect. See VA treatment records dated 2012 to 2015. The Veteran was afforded another VA examination in July 2015. The examiner indicated that the Veteran’s depressive disorder resulted in depressed mood, insomnia, hypersomnia, feelings of worthlessness, and excessive or inappropriate guilt. The Veteran’s cognitive disorder, as a result of a prior, nonservice-connected cerebrovascular accident, resulted in changes in cognitive functioning. During the evaluation, the Veteran reported living with his girlfriend. The Veteran indicated that his girlfriend was his “over-seer.” Upon mental status examination, the Veteran’s mood was dysphoric, affect was irritable, and insight was fair. The Veteran denied any suicidal or homicidal ideations. The examiner opined that the Veteran’s mood disorder resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. During an October 2018 VA psychiatric examination, the Veteran was found to have symptoms of depressed mood and mild memory loss. The examiner indicated that the Veteran demonstrated minor cognitive deficit during a mental status examination. However, the examiner noted that there was not sufficient objective evidence during the interview that was suggestive of cognitive impairment “without formal cognitive testing.” The examiner further indicated that this testing was “beyond the scope of this examiner.” Pursuant to the Board’s August 2019 remand, the Veteran underwent VA psychiatric and cognitive screening examinations in December 2019. During the cognitive screening examination, the examiner (i. e., a licensed psychologist), indicated that the Veteran had mild memory loss, normal judgment, appropriate social interaction, and was always oriented to person, time, place, and situation. Motor activity and visual spatial orientation was normal. The examiner indicated that there was cognitive dysfunction suspected as a result of the Veteran’s two prior strokes. During the VA psychiatric examination, the examiner indicated that the Veteran had a history of two strokes, which resulted in the Veteran’s cognitive impairments. Current symptoms associated with the Veteran’s mood disorder were noted to include depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, disturbance of motivation and mood, difficulty adapting to stressful circumstances, and impaired impulse control. Upon mental status examination, the Veteran was depressed with a flat affect. The Veteran denied any suicidal or homicidal ideation. The examiner further indicated that the Veteran’s symptoms had worsened over time and had “progressed” to “major depressive disorder.” VA treatment records dated in March 2020 note that the Veteran’s mood was stable. The Veteran reported occasional problems with concentration “from past stroke.” He indicated that he continued to be in a relationship with his girlfriend. The Veteran denied any suicidal or homicidal ideations. Upon review of all the evidence of record, both lay and medical, the Board finds that the Veteran’s depressive disorder disability more nearly approximates the criteria for a 50 percent rating for the initial rating period prior to December 17, 2019. The Board finds that the Veteran’s symptoms have remained relatively consistent throughout the appeal period, including ongoing depressed mood and constricted or flattened affect. See e. g., VA treatment records dated from June 2012 to March 2015 (noting symptoms of frequently depressed and dysphoric mood with anxious and constricted affect); see also March 2012 VA examination report (noting a restricted affect). The Board also finds it unlikely that the Veteran’s disability suddenly worsened on the day of the December 2019 VA examination, particularly in light of the examiner’s finding that the Veteran’s symptoms had “worsened over time.” For these reasons, resolving reasonable doubt in the Veteran’s favor, the Board finds that a 50 percent rating for the Veteran’s depressive disorder is warranted for the rating period prior to December 17, 2019. 38 C.F.R. §§ 4.3, 4.7. The Board next finds that, for the entire initial rating period on appeal, the Veteran’s depressive disorder has not more nearly approximated occupational and social impairment, with deficiencies in most areas. The weight of the evidence demonstrates that the Veteran’s overall psychiatric disability picture is adequately contemplated by the 50 percent rating currently assigned. The occasional sleep impairment and depressed mood are symptoms specifically contemplated under the criteria for a 30 percent rating. The restricted affect and disturbance of motivation and mood are contemplated in the 50 percent rating criteria. The Veteran has consistently lived with his girlfriend, which demonstrates at least some capacity to maintain social relationships. The evidence also shows that the Veteran stopped working due to physical limitation, and not solely as a result of his psychiatric disorder. See September 2011 VA Form 21-8940. The Board also notes that the Veteran has been found to have some cognitive impairments (including memory problems and poor concentration), however, these impairments have been associated as residuals of the Veteran’s prior strokes, which are not service-connected disabilities. For these reasons, the Board finds that a 50 percent rating, but no higher, for depressive disorder is warranted for the entire rating period on appeal. SMC-Laws and Analysis The Veteran has been in receipt of a total disability rating based on unemployability (TDIU) based on his combined service-connected disabilities since April 15, 2011 (the entire initial rating period on appeal). Upon review of all evidence of record, the Board finds that special monthly pension based on the need for regular aid and attendance of another person or on account of being housebound is not warranted. With regard to housebound status, the threshold statutory requirement is that the Veteran must have a single permanent disability rated at 100 percent. However, in this case, the Veteran does not have a single service-connected disability rated as 100 percent disabling. As noted above, the Veteran’s TDIU was awarded based on the Veteran’s combined disabilities. Absent a single disability rated as 100 percent disabling, based on the applicable statute and regulation, the basic requirements for special monthly pension on the account of being housebound have not been met. 38 U.S.C. § 1521 (e); 38 C.F.R. § 3.351 (d). Moreover, the evidence of record shows that the Veteran is not “permanently housebound,” in that he is not substantially confined to his house or immediate premises due to permanent disability or disabilities. 38 U.S.C. § 1502 (c); 38 C.F.R. § 3.351 (d)(2). Instead, as discussed in more detail below, the record shows that the Veteran is able to leave his home whenever he wishes and is able to travel outside the home alone. Consequently, the preponderance of the evidence is against the claim for special monthly pension by reason of being housebound. 38 U.S.C. §§ 1502 (c), 1521(e), 5107; 38 C.F.R. § 3.351 (d). The Board will also consider whether the Veteran meets the criteria for special monthly compensation based on the need for regular aid and attendance. Unlike housebound benefits, there is no statutory or regulatory requirement for a Veteran to be rated 100 percent disabled to be determined to be in need of regular aid and attendance. Therefore, if a Veteran meets the criteria for aid and attendance under 38 C.F.R. § 3.352 (a), a rater may grant special monthly pension at the higher aid and attendance rate even though the Veteran is not rated 100 percent disabled under the rating schedule. Entitlement to special monthly compensation by reason of the need for regular aid and attendance requires helplessness such as to require the regular aid and attendance of another person. One is considered in need of regular aid and attendance if he: (1) is a patient in a nursing home on account of mental or physical incapacity; (2) is blind or nearly so blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; or (3) establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352 (a). 38 U.S.C. § 1502 (b); 38 C.F.R. § 3.351 (b), (c). Based on review of the record, the Board concludes that the criteria for special monthly compensation due to a need for regular aid and attendance have not been met. The Veteran is not a patient in a nursing home. Likewise, he is not blind or nearly-blind. Thus, the remaining question is whether the Veteran satisfies the criteria of 38 C.F.R. § 3.352 (a). Under 38 C.F.R. § 3.352 (a), the inability to independently perform the following examples of activities could satisfactorily demonstrate the need for regular aid and attendance: dress and undress; keep oneself ordinarily clean and presentable; feed oneself (impairment resulting through loss of coordination of upper extremities or through extreme weakness); attend to the needs of nature; protect oneself from the hazards and dangers incident to the daily environment; or perform frequently required self-adjustment of prosthetic appliances. Here, the record does not show that the Veteran is in need of regular aid and attendance of another person because of helplessness. The Veteran submitted a November 2019 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance from Dr. Elkomos. At that time, relevant diagnoses were noted to include cerebrovascular accident with secondary cognitive impairment, left partial hemiparesis, hypertension, ostearthritis, low back pain, diabetes, and depression. Dr. Elkomos noted that the Veteran was not blind and did not require nursing home care. Although the Veteran was able to feed himself, Dr. Elkomos noted that he required assistance with preparing meals, tending to hygiene needs, and help with managing medications. It was further noted that the Veteran was unable to use his left hand due to contracture as a result of his prior stroke. He also required the use of a cane to assist with ambulation. The Veteran was afforded a VA examination for Housebound Status or Permanent Need for Regular Aid and Attendance in December 2019. At that time, the examiner specifically indicated that the Veteran needed assistance with preparing meals, tending to hygiene needs, and required help opening medication bottles as a result of his left hand contracture. The Veteran was not legally blind and did not require nursing home care. As it pertained to his upper extremities, the examiner indicated that the left hand contracture (i.e., not a service-connected disability) resulted in difficulty with fine motor movements (griping, feeding, cooking, dressing, shaving). His lower extremity disabilities (knee, hip, ankle) interfered with the Veteran’s ability to walk, bend, and kneel. The examiner indicated that the Veteran arrived to the examination alone and used the service of a taxi. It was further noted that the Veteran left the home to travel to the post office or restaurants 2-3 times a week and traveled alone by bus or taxi. The Veteran used knee braces and a cane to assist with ambulation. Upon review of the evidence of record, the Board finds that the medical evidence does not support that the Veteran’s service-connected disabilities have resulted in his current physical and mental incapacitation. As noted above, SMC at the rate provided under 38 U.S.C. § 1114 (l) is payable when a veteran due to service-connected disability is permanently bedridden, blind or with visual acuity of 5/200 or less in both eyes, or in need of regular aid and attendance. The weight of the evidence of record demonstrates that the Veteran does not need aid and attendance due to his service-connected disabilities. In this regard, the Veteran’s difficulties with preparing meals, administering medication, and tending to hygiene needs are related to his left hand contracture secondary to his cerebrovascular accident (i. e., strokes). Notably, however, the Veteran is not service-connected for residuals of a cerebrovascular accident. The Veteran’s service-connected disabilities, which include a bilateral knee disability, lumbar spine disability, radiculopathy, right hip disability, and right ankle disability have been shown to impair the Veteran’s ability to walk, kneel, and bend. However, the Veteran is still able to travel outside the home unaccompanied—as demonstrated during the December 2019 VA examination. In sum, the weight of the evidence of record demonstrates that the Veteran does not need aid and attendance due to his service-connected disabilities. As such, the Board concludes that special monthly compensation based upon need for aid and attendance is not warranted. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.